On this slender thread does the promise of religious liberty hang. Justice Anthony Kennedy, in his majority opinion in Obergefell that declares same-sex marriage a constitutional right, barely mentions the means by which most Americans conduct their weddings — houses of worship. Only on page 27 does Kennedy get around to addressing the connection between church and state, and the assurances in this paragraph are less than compelling, to say the least:
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.
Uh …. sure, you can still advocate for traditional marriage. You betcha. Where have we heard these protestations of modesty before?
2005: Our marriage won't affect your rights. 2014: Bake a cake or be destroyed. 2015: We won't touch your church. Promise. Tee hee.
— John Nolte (@NolteNC) June 26, 2015
Note here that Kennedy only mentions that houses of worship and those who attend them can still “advocate” against condoning same-sex marriage (SSM). This ignores the long-standing partnership between churches/synagogues/mosques and the government in officiating legally recognized marriage ceremonies. This decision now makes marriage for those same-sex couples a constitutional right, and that will eventually impact those partners for government who officiate such ceremonies.
It won’t be long before lawsuits appear to force churches into performing same-sex weddings, which then becomes a RFRA (Religious Freedom Restoration Act) test against state interests. That’s not going to be a slam dunk for the churches, either — not by a long shot. The state interest in enforcing constitutional rights is presumed to be strong, plus Kennedy’s opinion lists a number of ancillary state interests that makes SSM an Equal Protection Clause issue:
The nature of injustice is that we may not always see it in our own times. … Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.
And pay particular attention to this passage:
Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.
Will a court, reading this holding, decide that the harm of this “exclusion” and the denial of a constitutional right by an agent of the state in performing weddings override the First Amendment right of free exercise of religion? Some may not, but don’t bet on that as a consistent outcome. Furthermore, the legal challenges that will occur will punish these churches, especially smaller congregationalist entities without significant resources. The process will be the punishment — although I’d bet that the first target will be the Catholic Church, which at least has resources to fight it.
I’d also note that Kennedy, who brought up the topic, could have written explicitly that houses of worship and individuals have a First Amendment right not to participate in these ceremonies. That issue has been raised on a number of occasions in the courts. The absence of any such language sends a very disturbing message on religious freedom, in this and many other contexts.
Chief Justice John Roberts sounded the warning in his dissent:
Federal courts are blunt instruments when it comes to creating rights. They have constitutional power only to resolve concrete cases or controversies; they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right. Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority— actually spelled out in the Constitution. Amdt. 1. …
The majority’s decision imposing same sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.
Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. See Tr. of Oral Arg. on Question 1, at 36–38. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.
Justice Clarence Thomas also warns that the majority has provided a body blow to religious liberty:
Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect. …
In our society, marriage is not simply a governmental institution; it is a religious institution as well. Id., at 7. Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.
The majority appears unmoved by that inevitability. It makes only a weak gesture toward religious liberty in a single paragraph, ante, at 27. And even that gesture indicates a misunderstanding of religious liberty in our Nation’s tradition. Religious liberty is about more than just the protection for “religious organizations and persons . . . as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Ibid. Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice.7
Although our Constitution provides some protection against such governmental restrictions on religious practices, the People have long elected to afford broader protections than this Court’s constitutional precedents mandate. Had the majority allowed the definition of marriage to be left to the political process—as the Constitution requires—the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty.
Get ready for a massive legal assault on houses of worship that refuse to accommodate same-sex weddings. Even legislation on the federal and state level may not be able to undo the broad opening that Kennedy et al has forced on the religious institutions and people in the US. It’s clear that the Supreme Court has become unmoored from the Constitution, and in doing so has unmoored all of us as well.